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British government to answer fast-track spy challenge

2014-01-23 22:45:00, stefan

Campaigners have welcomed the decision of the European Court of Human Rights to move quickly in determining whether the recently revealed internet surveillance programmes operated by GCHQ are in breach of the law.

Big Brother Watch, the Open Rights Group and English PEN, along with German internet activist Constanze Kurz, brought the action after revelations about the collection of huge amounts of internet data by the British spy base.

The court has completed its preliminary examination of the case and has communicated it to the British government, asking it to justify how GCHQ's practices and the current system of oversight comply with the right to privacy under Article 8 of the European Convention. The court has also given the case a rare 'priority' designation. The government now has until 2 May to respond, after which the case will move into the final stages before judgment.

The groups claim that by collecting data on millions of people not under any suspicion, GCHQ has infringed on the privacy rights of not only British but also European citizens.

Nick Pickles, director of Big Brother Watch, said: 'We now know that GCHQ operate a central database of communications despite Parliament being told such a database would not be built. This legal challenge is an essential part of getting to the bottom of why the public and Parliament have not been properly informed about the scale of surveillance and why our privacy has been subverted on an industrial scale.'

Jo Glanville, director of English PEN, said: 'The government has so far failed to address the revelations about GCHQ's activities with any sense of urgency. We're delighted that the European Court of Human Rights has made the action a priority. This only ever happens in a minority of cases and is a measure of the significant international concern about the UK's unchecked surveillance.'

Jim Killock, Executive Director of the Open Rights Group, said: ‘The digital age comes with the potential for government to try to monitor everything and everyone almost constantly. We've learnt that our laws have been abused to fulfil this ambition.‘

Daniel Carey, Solicitor at Deighton Pierce Glynn solicitors, who represent the applicants, said: 'The European Court of Human Rights has acted remarkably quickly in communicating the case to the Government and designating it as a priority. It has also acted decisively by requiring the Government to explain how the UK's surveillance practices and oversight mechanisms comply with the right to privacy. This gives real hope to the public that the European Court of Human Rights will require reform if the Government continues to insist that nothing is wrong.'

Constanze Kurz, computer scientist and Internet activist, said: 'The European Court of Human Rights expects fast answers from the British government. It is vital now that human rights and the respect of the privacy of millions of people will also be prioritized not only by the British government and parliament but also at EU level.'

Big Brother Watch, Open Rights Group and English PEN, together with German internet ‘hacktivist’ and academic Constanze Kurz launched a legal challenge to the UK’s internet surveillance activities before the European Court of Human Rights on 4 September 2013. They argue that such unchecked surveillance is a breach of theirs, and our, Right to Privacy under Article 8 of the European Convention on Human Rights. Any interference with that right must be proportionate and in accordance with adequate and published legal standards. The law and practice in the UK fails to meet either requirement.

The Applicants initially sought to bring their case in the UK domestic courts and wrote to the UK Government on 3 July 2013 stating that a judicial review challenge would be brought. However the government told the Applicants that they would have to make a complaint to the Investigatory Powers Tribunal (a tribunal that hears complaints against the intelligence services in secret). The European Court of Human Rights has held in the case of Kennedy v UK that it does not require applicants to complain to the Investigatory Powers Tribunal before making an application to Strasbourg, due to concerns about its effectiveness and its power to grant the remedy that they seek. The Applicants have therefore issued proceedings in the European Court of Human Rights, which will determine whether UK law breaches international law. It is believed to be the first international law challenge based on the Snowden disclosures.

UK internet surveillance is predominantly regulated by the Regulation of Investigatory Powers Act (RIPA). This is supposed to ensure that internet surveillance is the exception, not the rule. But it has failed. Because many of our internet activities can be deemed "external" to the UK, the government is able to certify that they are tapped, stored and analysed by GCHQ (under section 8(4) RIPA). External communications are those where a sender or recipient is outside the UK, as will very often be the case. These ‘global’ warrants issued for the TEMPORA programme appear to be granted on a continual ‘rolling’ basis. Furthermore, the information extracted appears to be freely available to intelligence partners such as the NSA. It is equivalent to having all the letters passing through the UK intercepted, stored, analyzed, copied and capable of being read by a potentially unlimited number of intelligence agencies around the world, where this is regarded as being in the 'interests of national security'.

At the time RIPA was enacted it was not even clear to legislators whether or not internet communications would be capable of being intercepted in a useful way. Certainly there was no public awareness of the enormous implications of the powers granted by RIPA to the intelligence services.

Similarly, GCHQ’s use of US PRISM data to spy on our internet activities has also gone unchecked. Regulators in this country were entirely unaware of it until the public disclosures. The most important of those regulators, the Parliamentary Intelligence and Security Committee, quickly looked into the matter and issued a clean bill of health within weeks of the revelations.

But further examination shows that investigation to have been extremely narrow in its scope and the two page report hardly scratches the surface. This entire area is entirely unregulated by any law or published regulations.

The Applicants are asking the Court to declare that the UK’s internet surveillance practices are disproportionate and that the legislation intended to protect the public’s rights to privacy in this context is not fit for purpose. The practice of issuing surveillance warrants has failed and/or been circumvented and those responsible for oversight have failed. The Applicants ask the Court to order the UK to adopt internet surveillance practices that recognise our rights to privacy. This means new laws that require surveillance to be proportionate; to be overseen by judicial authorities acting in public; that permit notification of persons affected by surveillance (even if after the fact); that are overseen by adequately resourced and empowered regulators. In short, a legal regime that recognises the Principles on the Application of Human Rights to Communications Surveillance (see: https://en.necessaryandproportionate.org).